New South Wales Supreme Court CITATION : James William Doyle v Christine Maree Glass & 2 Ors [2010] NSWSC 94 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 11 February 2010 JUDGMENT DATE : 22 February 2010 JURISDICTION : Common Law JUDGMENT OF : Harrison AsJ (1) A declaration that the decision of the Proper Officer of the Motor Accidents Authority of New South Wales issued on 28 October 2009 in matter No 2009/02/0118 is vitiated by error of law. DECISION : (2) An order in the nature of certiorari removing into the Court the decision of the Proper Officer issued on 28 October 2009 in matter No 2009/02/0118 and quashing that decision. (3) An order that matter No 2009/02/0118 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. (4) The first and second defendants are to pay the plaintiff's costs as agreed or assessed. CATCHWORDS : ADMINISTRATIVE REVIEW - Judicial Review - ERROR OF LAW - Medical assessment under Motor Accidents Compensation Act 1999 - Where Proper Officer made decision to refer the matter for further assessment - Whether Proper Officer made error in law LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970 CATEGORY : Principal judgment Craig v South Australia (1995) 184 CLR 163 CASES CITED : Garcia v Motor Accidents Authority (2009) NSWSC 1056 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) TEXTS CITED : American Medical Association's Guide to the Evaluation of Permanent Impairment, 4th ed, Third Printing (1995) Macquarie Dictionary Online James William Doyle (Plaintiff) PARTIES : Christine Maree Glass (First Defendant) Adam Christopher Glass (Second Defendant) Motor Accidents Authority of NSW (Third Defendant) FILE NUMBER(S) : SC 2009/298131 R Quickenden (Plaintiff) COUNSEL : M A Robinson (First and Second Defendants) Submitting appearance (Third Defendant) Peninsula Law (Plaintiff) SOLICITORS : Moray & Agnew (First and Second Defendants) Crown Solicitor's Office (Third Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ASSOCIATE JUSTICE HARRISON MONDAY, 22 FEBRUARY 2010 2009/298131 JAMES WILLIAM DOYLE v CHRISTINE MAREE GLASS & 2 ORS JUDGMENT (Judicial review s 62(1) Motor Accidents Compensation Act) 1 HER HONOUR: By summons filed 16 November 2009, the plaintiff seeks firstly, a declaration that the decision of the Proper Officer of the Motor Accidents Authority of New South Wales made on 28 October 2009 in matter number 2009/04/2775 is vitiated by error of law; secondly, an order pursuant to s 69(1) of the Supreme Court Act 1970 the decision of the Proper Officer of the Motor Accidents Authority of New South Wales made on 28 October 2009 in matter number 2009/04/2775 is removed into this Court and quashed; and thirdly, an order that the second defendant's application for a further medical assessment in matter number 2009/04/2775 be remitted to the Motor Accidents Authority of NSW to be determined in accordance with law. 2 The plaintiff is James William Doyle ("Mr Doyle"). The first defendant is Christine Maree Glass ("the first defendant"). The second defendant is Adam Christopher Glass ("the second defendant"). The third defendant is the Motor Accidents Authority of New South Wales ("the Motors Accident Authority"). Apparently the Motor Accident Authority has filed a submitting appearance. Mr Doyle relied upon the affidavit of his solicitor Alan Arnold Bingham sworn 13 November 2009. 3 Mr Doyle seeks relief for an error of law from an administrative decision made by the delegate on 28 October 2009. Judicial review 4 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. 5 The scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals is taken from Craig v South Australia (1995) 184 CLR 163 at 179: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 6 Recently, in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) the High Court discussed jurisdictional error in Australia and considered Craig at [66] – [68] The proceedings in the Motor Accidents Authority 7 On 4 April 2006, the plaintiff (then aged 18 years) was injured in a motor vehicle accident. According to the Royal North Shore hospital discharge summary, Mr Doyle sustained the following injuries in the motor vehicle accident: right haemopneumothorax, fractured ribs, thoracic aortic aneurysm, subcapsular tear of the spleen, traumatic subarachnoid haemorrhage, scalp laceration, undisplaced fracture of right pubic ramus, head injury associated with subdural and subarachnoid haemorrhage and memory loss. 8 Mr Doyle was assessed by the Medical Assessment Service Assessors for permanent impairment. Permanent impairment is defined in the American Medical Association's Guide to the Evaluation of Permanent Impairment, 4th ed, Third Printing (1995) (AMA 4 Guides) as an impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (ie by more than 3% whole person impairment) in the next year with or without medical treatment. 9 On 7 July 2009, Jennifer Kirkby certified that the combined whole person impairment as follows: MAS certificate of Assessor Mark Burns dated 12 March 2009. WPI 25%. [The WPI comprises cardiovascular (aorta) 20%, cardiovascular (aortic valve) 4%, cardiovascular (subclavian artery) 2%]. (This should probably have been 26% as there appears to be a mathematical error) MAS certificate of Assessor Keith Lethlean 31 March 2009. 6% WPI MAS certificate of Assessor Allen Mears 9 June 2009. 7% 10 As the whole person impairment assessment is 10% or greater, Mr Doyle is entitled to damages for non economic loss. The first and second defendants' insurer AAMI ("the insurer") has admitted breach of duty of care but claims contributory negligence for the plaintiff's alleged failure to wear a seatbelt. Proceedings have been commenced in the District Court at Gosford. The hearing date has been vacated because of this judicial review. 11 On 28 August 2009, the insurer sought and was granted a further permanent whole person impairment assessment on the basis there was additional relevant information in the form of further medical reports by Professor O'Rourke dated 27 June 2008 and 17 February 2009 and Professor Mattick dated 11 March 2009 pursuant to s 62(1)(a) of the Motor Accidents Compensation Act 1999 ("the Act"). The statutory provision and guidelines 12 The decision maker derives her powers, functions and obligations pursuant to the Act and related delegated statutory instruments such as the Medical Assessment Guidelines issued under s 44(1)(d) and s 57A of the Act. 13 Section 62 of the Act reads: "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. …" 14 Hence, the matter may not be referred to assessment on the grounds of additional information about the injury unless the additional information is such as to be capable of having a material effect on the outcome of the previous assessment. 15 In Garcia v Motor Accidents Authority (2009) NSWSC 1056, Rothman J discussed the proper construction of s 62(1) stated at [38]: "38 The proper construction of the term in s 62(1) of the Act is a question of law. The determination, whether, in any particular case, the information is "additional", or, whether, in another case, the material is "information", will be a question of fact. The term "additional information" about the injury does not include a restatement of information already received. Nor does it include a summary of information already received. It does include new information about an injury, even though it does not describe the injury or some other feature of the injury. An expert medical opinion as to the cause of injury is relevant evidence and is "about the injury". Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind, would be "additional relevant information about the injury". Such an opinion would satisfy one of the pre-conditions prescribed in s 62(1)(a) of the Act." 16 Garcia was decided prior to the addition of s 62(1A). The additional information about the injury 17 In his first report dated 4 June 2008, Professor Mattick opined that although Mr Doyle reported some pain and functional impairment, generally he is independent in all of the activities of daily living and has the ability to carry out domestic activities, community activities, social and leisure activities. Professor Mattick was of the opinion that Mr Doyle did not suffer any significant psychological disorder and that he probably overstated his problems on questionnaire measures. 18 Professor Mattick commented that Mr Doyle would probably require further assessment given that he was obviously emotionally distressed when he saw Ms Batchelor and this would have compromised his effort and therefore his performance for her. The assessment by Assessor Batchelor was conducted only one to two months prior to the assessment by Professor Mattick. Professor Mattick stated that re-assessment in 6 to 12 months was warranted. 19 In the latter report dated 11 March 2009, Professor Mattick reported that he had conducted neuropsychological assessment and he did not believe that there was any cognitive impairment [12.23]. His opinion was that Mr Doyle appeared to be largely independent in day to day functioning but complained of some pain. He has an adjustment disorder with feelings of depression and there was no cognitive dysfunction. This latter view differs only in so far as Mr Doyle has an adjustment disorder with feelings of depression. 20 The first report of Professor O'Rourke dated 27 June 2008 was not before the Assessor. In that report Professor O'Rourke opined that: "…James made a recovery from the cerebral and other injuries but the stent did not seal the aortic laceration but did obstruct the origin of the left subclavian artery, leading to a thrombosis in its proximal segment. A false ancurysm was developing at the site of the initial aortic laceration and in June of 2006 James was readmitted to hospital at Royal North Shore and underwent removal of the aortic stent and reconstruction of the descending thoracic aorta with an aortic graft with subclavian endarterectomy. This procedure was successful and James convalesced over several months before returning to work before the end of the year. An uncertain issue is aortic valve incompetence. This was apparently first noted in an echocardiogram at Royal North Shore Hospital and then pointed out again by Dr Eikens in his report of 3 rd September 2007. Dr Eikens did a further echocardiogram and gauged the degree of aortic valve incompetence as moderate. There is no reference in the hospital notes that I have received nor in Dr Marshman's reports on the presence of aortic valve incompetence nor the prognostic implications of this to James. It would be desirable for me to have further information from the Royal North Shore Hospital and from Dr Marshman on this issue since it is relevant to a number of the questions that you have asked." … I believe that the complaints and disabilities are not completely reasonable in that they refer to symptoms at the site or around the site of operative scars. Most people who undergo cardiac surgery are not unduly bothered by such complaints. James has no complaints that could be related to his heart or vascular system at this stage. … I believe that James' injuries have stabilised except for the aortic valve incompetence. I cannot advise on impairment until I know more about the aortic valve issue, the cause of this, and as to whether there was a problem with the aortic valve prior to the motor vehicle accident. …" 21 In Professor O'Rourke's latter report dated 17 February 2009, he opined that aortic regurgitation may have been present before Mr Doyle's accident and concluded that: "I believe that the percentage of whole person impairment suffered as a consequence of the claim is the need for a graft to the descending thoracic aorta. The initial procedure was done as a temporary measure because there were other threatening injuries principally to the brain. Definitive repair with grafting is similar to that undertaken for person with aortic coarctation – a congenital lesion, where long-term survival is excellent without further complications. Dr Marshman has recommended follow up with further scanning at 2, 5 and 10 years. I am not skilled in assessment of impairment so provide no rating." 22 It is clear that Professor O'Rourke cannot provide a whole person impairment for the repair and grafting of the descending thoracic aorta. On one reading of his reports, Professor O'Rourke is saying that there is no whole person impairment so far as the heart or vascular system are concerned. This could mean that the whole person impairment of 20% could be reduced to zero. The guidelines 23 The Motor Accidents Authority has issued Guidelines for the assessment of the degree of permanent impairment (1 October 2007) ("the Guidelines") (Ex 1). The convention used in these Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed. 24 Under the heading "Permanent impairment" in the Guidelines 1.23 is bold print. It reads: "1.23 The evaluation should only consider the impairment as it is at the time of the assessment. " 25 Chapter 14.5 and 14.8 of the guidelines set out the parameter for determining whether a matter should be referred for further assessment. They are: "14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to: 14.5.1 the application and any reply; 14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes as MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and 14.5.3 the object of the Act and the objects of MAS. 14.6 For the purposes of section 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about: 14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa; 14.6.2 related treatment, from 'not related' to 'related' or visa versa; or 14.6.3 permanent, impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% while person impairment' or vice versa. 14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application. 14.8 The proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2." The Proper Officer's reasons 26 Sarah Carpenter, Case Manager for Proper Officer Medical Assessment Service in her reasons dated 28 October 2009 stated: "I have considered the application for Further Assessment, the reply and all supporting documentation submitted in this matter. The application is based on additional relevant information about the injuries and is made on two grounds. There has been further neuropsychological testing conducted by Professor Mattick on 11 March 2009 this appears to demonstrate an improvement since Professor Mattick assessed the injured party on 4 June 2008. Assessor Lethlean previously assessed the injured party for MAS on 30 March 2009 and found 5% for cognitive impairment, the additional relevant information contained in Professor Mattick's report may lead to a reduction in this figure. Assessor Burns assessed the injured party on 12 March 2009 and found 25% - 20% for the aorta, 4% for the aortic valve and 2% for the subclavian artery. The applicant has now provided a report from Dr O'Rourke dated 17 February 2009 which was not previously before Assessor Burns. He has reviewed the clinical notes from Royal North Shore hospital and has determined that the aortic injuries were not caused by the accident with the exception of the need for a graft to the descending thoracic aorta. It is noted that the respondent states that no evidence has been provided by the applicant to indicate that Assessor Burn's methodology is incorrect. It should be noted that evidence such as this is only required when making an application for a review of a MAs assessment under section 63 of the Act. … I am satisfied that the reports of Professor Mattick and Dr O'Rourke may have a material effect on the outcome of the previous assessment. Whether they will have a material effect is a medical determination and therefore this matter will be referred for further assessment. …" Whether the correct test was applied 27 The statutory test in s 62(1A) of the Act is that the matter may not be referred to assessment on the grounds of additional information about the injury unless the additional information is such as to be capable of having a material effect on the outcome of the previous assessment. The Proper Officer applied the test that the additional information may have a material effect on the outcome of the previous assessment. 28 Counsel for Mr Doyle submitted that the bar is higher and the test more stringent than expressed and applied by the decision maker in the Proper Officer's decision dated 28 October 2009. Counsel submitted that the decision maker erred when applying the s 62 test as relevant additional information being sufficient if it may have a material effect on the outcome of the previous assessment and that the test is unless the additional information is relevant and capable of having a material effect on the outcome of the previous assessment, the application will not be referred for further assessment. Counsel for Mr Doyle further submitted that the word may is a verb expressing uncertainty. The word capable is an adjective meaning having ability or competency for the task and that the test is not may be capable. Counsel says that unless the additional relevant information has the capacity of having a material effect on the outcome of the whole person impairment assessment the decision maker should not refer the matter for further medical assessment. 29 Counsel for the first and second defendants submitted that while it is always good form and safe administrative practice for a decision maker to follow precisely the form of the statute or regulation in decision making, it is not a hard and fast rule. What must be shown is legal error and that the wrong question has been asked or that a wrong approach has been taken. According to the first and second defendants that is not the case here and that Mr Doyle contends for a distinction without a difference. 30 It is my view that there is a difference between "may have a material effect" and "is such as to be capable of having a material effect". "May" is defined as "expressing uncertainty" and "capable of" is defined as "having the ability, strength or fitted for": Macquarie Dictionary Online. 31 It is my view that the proper test is more stringent than the one the Proper Officer applied. The Proper Officer asked herself the wrong question and by so doing made an error of law that is jurisdictional error. 32 I make a declaration that the decision of the Proper Officer of the Motor Accidents Authority of New South Wales issued on 28 October 2009 in matter No 2009/02/0118 is vitiated by error of law. I make order in the nature of certiorari removing into the Court the decision of the Proper Officer issued on 28 October 2009 in matter No 2009/02/0118 and quashing that decision. I make an order that matter No 2009/02/0118 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. 33 Costs are discretionary. Costs usually follow the event. The first and second defendants are to pay the plaintiff's costs as agreed or assessed. The Court orders: (1) A declaration that the decision of the Proper Officer of the Motor Accidents Authority of New South Wales issued on 28 October 2009 in matter No 2009/02/0118 is vitiated by error of law. (2) An order in the nature of certiorari removing into the Court the decision of the Proper Officer issued on 28 October 2009 in matter No 2009/02/0118 and quashing that decision. (3) An order that matter No 2009/02/0118 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. (4) The first and second defendants are to pay the plaintiff's costs as agreed or assessed. ********** 23/03/2010 - Typo in name of third defendant on coversheet. "Aaccident" amended to "Accident" - Paragraph(s) Cover Sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.